1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see

2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please

3 also note that this electronic memorandum opinion may contain computer-generated errors or other

4 deviations from the official paper version filed by the Court of Appeals and does not include the

5 filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 31,220

10 ABEL RAMIREZ,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

13 Thomas A. Rutledge, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender

18 B. Douglas Wood III, Assistant Appellate Defender

19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 WECHSLER, Judge.

23 Ramirez appeals his conviction for aggravated battery. In this Court’s notice
2

1 of proposed summary disposition, we proposed to affirm. Ramirez has filed a

2 memorandum in opposition, which we have duly considered. As we are not persuaded

3 by Ramirez’s arguments, we affirm. 

4 Prosecutorial Misconduct in Closing Argument

5 Ramirez contends that the prosecutor committed misconduct in closing

6 argument by misstating the burden of proof. [DS 11, 13; MIO 5-8] In our notice of

7 proposed summary disposition, we proposed to conclude that the prosecutor’s single

8 comment did not warrant reversal. See State v. Allen, 2000-NMSC-002, ¶ 95, 128

9 N.M. 482, 994 P.2d 728 (stating that a single, isolated incident of prosecutorial

10 misconduct is not reversible error). We also proposed to hold that reversal was not

11 warranted because the jury instructions stated the proper burden of proof [RP 72-73],

12 and because Ramirez’s closing argument also explained the appropriate burden. See

13 State v. Armendarez, 113 N.M. 335, 338, 825 P.2d 1245, 1248 (1992) (holding that

14 a prosecutor’s misstatement of the law in closing argument did not warrant reversal

15 where the jury instructions contained a correct statement of the law). Ramirez’s

16 memorandum in opposition urges us to conclude otherwise [MIO 5-8], but he provides

17 no persuasive argument that the single comment, which was not objected to at trial,

18 constituted fundamental error where the jury instructions were correct. See Allen,

19 2000-NMSC-002, ¶ 95 (stating that “[p]rosecutorial misconduct rises to the level of
3

1 fundamental error when it is so egregious and had such a persuasive and prejudicial

2 effect on the jury’s verdict that the defendant was deprived of a fair trial” (internal

3 quotation marks and citation omitted)). 

4 Evidence of Ramirez’s Statement to a Detective

5 Ramirez contends that the district court erred in admitting evidence of a

6 statement he made to a detective. [DS 11; MIO 8-9] In our notice of proposed

7 summary disposition, we proposed to hold that he had failed to demonstrate error on

8 this basis. In Ramirez’s memorandum in opposition, he asserts that the admission of

9 this evidence violated Rule 11-408 NMRA, which prohibits the admission into

10 evidence of statements made in settlement negotiations. [MIO 8] However, Ramirez

11 provides no authority to suggest that Ramirez’s statement that he would be willing to

12 work for the drug task force if the detective would arrange for his charge to be

13 dismissed is the sort of offer to “compromise” intended under the rule, or that a

14 criminal charge is a “claim” as that term is used in Rule 11-408. Since Ramirez cites

15 no authority to support this argument, we presume that there is none. See In re

16 Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Furthermore, in

17 State v. Anderson, 116 N.M. 599, 601, 866 P.2d 327, 329 (1993), our Supreme Court

18 stated that a defendant’s statements to officers during an investigation should not be

19 excluded under Rule 11-410 NMRA regarding the inadmissibility of plea
4

1 negotiations, and that the admissibility of such statements should be subject only to

2 standards of voluntariness and relevance. We conclude that the same rationale applies

3 here, and that Rule 11-408 did not bar the admission of Ramirez’s statements. 

4 Fundamental Error in the Admission of Evidence of a Prior Bad Act 

5 Ramirez asserts that fundamental error occurred at trial when the district court

6 permitted the victim to testify that the fight with Ramirez began when the victim told

7 Ramirez that he disapproved of Ramirez’s recent act of domestic violence. [DS 11,

8 13; MIO 10] In our notice of proposed summary disposition, we proposed to hold that

9 Ramirez had failed to demonstrate error on this basis. Evidence of prior bad acts is

10 admissible if relevant to prove some other issue legitimately in dispute, State v. Jones,

11 120 N.M. 185, 187, 899 P.2d 1139, 1141 (Ct. App. 1995), and here, there was a

12 dispute about whether Ramirez’s act of battery was self-defense. Ramirez responds

13 that, although he did not object at trial to the evidence, fundamental error occurred

14 because the evidence was inadmissible pursuant to Rule 11-404(B) NMRA and its

15 admission deprived him of a fair trial. [MIO 10-11] 

16 The admission of this evidence was not fundamental error. The evidence that

17 the fight began after the victim made this statement to Ramirez was relevant to show

18 that Ramirez was the aggressor in the physical confrontation, and that his attack was

19 motivated by his anger at the victim’s statement. See State v. Niewiadowski, 120 N.M.
5

1 361, 364, 901 P.2d 779, 782 (Ct. App. 1995) (stating that evidence of a prior

2 altercation between the defendant and the victims was relevant to the defendant’s

3 claim of self-defense because the self-defense claim presented the jury with the duty

4 to determine whether the defendant shot at the victims because they were aggressors

5 or because of his own private motive based on his animosity toward the victims due

6 to the prior incident). 

7 Motion for a Mistrial Based on the Late Disclosure of Evidence

8 Pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v.

9 Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), Ramirez contends that the district

10 court should have granted a mistrial when the State disclosed evidence twenty-three

11 days before trial, because this gave his counsel insufficient time to prepare, thus

12 rendering his counsel ineffective. [DS 11, 12; MIO 12-13] In our notice of proposed

13 summary disposition, we proposed to hold that the district court did not abuse its

14 discretion in refusing to grant a mistrial, as we proposed to hold that Ramirez had not

15 demonstrated reversible error under the four-part framework set out in State v. Mora,

16 1997-NMSC-060, ¶ 43, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as

17 recognized by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. 

18 Ramirez responds that there is some possibility that he was prejudiced by the

19 late disclosure, but that he is uncertain. [MIO 13] This assertion of the possibility of
6

1 prejudice is not the kind of showing of prejudice that warrants reversal on appeal. See

2 State v. Rojo, 1999-NMSC-001, ¶ 61, 126 N.M. 438, 971 P.2d 829 (refusing to hold

3 that the prosecution’s failure to disclose evidence required reversal in the absence of

4 a showing of prejudice from the late disclosure); State v. McDaniel, 2004-NMCA5 022, ¶ 14, 135 N.M. 84, 84 P.3d 701 (holding that the defendant failed to show

6 prejudice when he did not demonstrate “how his cross-examination would have been

7 improved by an earlier disclosure or how he would have prepared differently for

8 trial”).

9 Sufficiency of the Evidence

10 Ramirez contends that there was insufficient evidence to support his conviction

11 of aggravated battery with a deadly weapon. [DS 12; MIO 14-15] We proposed to

12 hold that, viewing the evidence in the light most favorable to the verdict, there was

13 sufficient evidence from which a reasonable juror could have found the essential

14 elements of the crime beyond a reasonable doubt. See State v. Cunningham, 2000-

15 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (setting out the appropriate standard

16 of appellate review). In Ramirez’s memorandum in opposition, he asserts that no

17 reasonable jury could have determined that he did not act in self-defense, and that this

18 jury’s finding that he did not act in self-defense must therefore necessarily have been

19 based on an improper statement by the prosecutor. We have already reviewed the
7

1 issue of the prosecutor’s statement and determined that it did not deprive Ramirez of

2 a fair trial. As for the evidence itself, as we stated in our notice, there was sufficient

3 evidence from which a reasonable juror could have determined that Ramirez did not

4 act in self-defense, and this Court will not reweigh the evidence or assess the

5 credibility of the witnesses on appeal. State v. Salas, 1999-NMCA-099, ¶ 13, 127

6 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any

7 conflict in the testimony of the witnesses).

8 Habitual Offender Enhancement

9 Pursuant to Franklin and Boyer, Ramirez asserts that his sentence was

10 improperly enhanced under NMSA 1978, Section 31-18-17 (2003) for a prior felony

11 conviction that was more than ten years old. However, Section 31-18-17(D)(1)

12 defines a “prior felony conviction” for the purpose of the habitual offender statute as

13 “a conviction, when less than ten years have passed prior to the instant felony

14 conviction since the person completed serving his sentence or period of probation or

15 parole for the prior felony, whichever is later[.]” Therefore, the relevant time period

16 is the date of the end of the sentence, probation, or parole for the prior conviction, not

17 the date of the prior conviction itself. As Ramirez’s memorandum in opposition

18 concedes that he finished serving his period of parole within ten years of the

19 conviction in this case [MIO 17], we find no error in the imposition of the habitual
8

1 offender enhancement.

2 Cumulative Error

3 Ramirez contends that the cumulative error at trial requires reversal in this case.

4 [MIO 18] As we have determined that Ramirez has failed to demonstrate error, there

5 is no cumulative error. See State v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M. 393,

6 981 P.2d 1211 (stating that where there is no showing of error, there can be no

7 cumulative error). 

8 Therefore, for the reasons stated in this opinion and in our notice of proposed

9 summary disposition, we affirm. 

10 IT IS SO ORDERED.

11 _________________________________

12 JAMES J. WECHSLER, Judge

13 WE CONCUR:

14 __________________________________

15 CELIA FOY CASTILLO, Chief Judge

16 __________________________________

17 TIMOTHY L. GARCIA, Judge

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